What is connection?

6.7          Mabo v Queensland [No 2] (‘Mabo [No 2]’) held that native title is ‘ascertained according to the laws and customs of the indigenous people who, by those laws and customs, have a connexion with the land’.[6] This proposition finds statutory reflection in s 223(1)(b) of the Native Title Act—‘the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters’.

6.8          The North Queensland Land Council (‘NQLC’) submitted that:

Aboriginal and Torres Strait Islander people understand connection to be gained through affiliation with ancestors dating back to a time before sovereignty but this is not necessarily the totality of how connection is viewed because connection is also a social experience and involves interaction with a living group of people associated with a particular area who, in the native title context, identify as native title holders for that area. The possession and speaking of language unique to the group of people, a personal totem linked to a story place, the presence of Elders who are respected decision makers may also constitute elements of connection for Aboriginal and Torres Strait Islander people.[7]

6.9          The term ‘connection’ operates at several formal and informal levels in the claims process for a determination of native title.[8] Connection is often used in a generic way to refer to whether native title has been proved and established.[9] Consultations revealed wide diversity in references made to connection, and in its meaning among stakeholders within the native title systemparticularly in relation to consent determinations. NQLC emphasised the diversity of what connection means between claim groups, stating that ‘subtle differences of understandings are very difficult, if not impossible, to capture in a s 223 legal definition’.[10] The Kimberley Land Council emphasised the conflict inherent in understanding native title in terms of common law understandings of interests in land.[11] The eminent anthropologist WEH Stanner wrote:

No English words are good enough to give a sense of the links between an Aboriginal group and its homeland A different tradition leaves us tongueless and earless towards this other world of meaning and significance.[12]

6.10       Courts have articulated several approaches to the factual ascertainment of ‘connection with the land or waters’, although guided by specific legal tests as detailed in Chapter 4. In consent determinations, where parties agree on the facts supporting connection, some ambiguity exists about what the factual inquiry entails and how much evidence of connection is necessary.[13] Some governments provide connection guidelines. Nonetheless, the ambiguity presents significant practical difficulties for claimants in bringing evidence in support of the claim.[14] Considerable investment of time and resources is also required in assessing evidence of connection.

6.11       The Federal Court in Neowarra v Western Australia (‘Neowarra’), in reference to the factual circumstances in Western Australia v Ward,[15] noted that ‘little is required to constitute a continuing connection’.[16] However, the variable meaning of connection has contributed to expanding the scope of the connection inquiry,[17] the range of matters that might be considered, and influenced the extent or ‘standard’ of evidence considered necessary.[18] This ambiguity is compounded when connection must be established over the extended length of time that is a requirement of the native title recognition model.[19] The practical result is the potential for a broad-ranging connection inquiry.[20]

6.12       In the determination of facts, courts at first instance have dealt with the concept of connection in a variety of ways.[21] In Neowarra, the Court set out two sets of factors relevant to establishing connection: first, matters pertaining to land and waters referable to law and custom, such as the languages of the area; and, secondly, factual inquiries about links to specific places in the claim area.[22] The first group referenced matters such as clan estates (areas of land) and the languages of the area—‘language countries, not merely languages spoken by people who live on the country’.[23] The second group comprised factual matters that demonstrate the maintenance of a physical, spiritual, economic or cultural link to land and water claimed, such as traditional ceremonies in particular places and ritual knowledge being passed on within the group. Neowarra demonstrates the wide variety of factors that may be relevant to establishing connection to the land or waters by laws and customs.

6.13       The High Court in Ward emphasised that connection pertains to the land and waters claimed and that native title rights and interests therefore must ‘relate to land and waters’.[24] In acknowledging the significance of connection to land and waters, it is important that the common law understanding of rights and interests in land and waters should not unduly narrow the perspective upon ‘connection’ for Aboriginal and Torres Strait Islander peoples.

6.14       Notwithstanding that some boundaries are set by the reference to land and waters, precisely which elements of Aboriginal and Torres Strait Islander peoples’ law and custom will give effect to connection in any claim is relatively open.[25] This reflects the need for native title to be determined in accordance with the unique factual circumstances for each claim. At another level, it renders the proof of connection potentially unbounded.

Alternative proof of connection

6.15       These difficulties are compounded by the adoption of a ‘laws and customs’ model for proof of native title which places so much emphasis on the continuity aspect in establishing connection.[26] In Mabo [No 2], several bases for proving connection with land and waters were canvassed. Justices Deane, Gaudron and Toohey discussed a possessory title drawing on Canadian jurisprudence.[27] A title founded on possession or occupation places less emphasis on the legal inquiry into the traditional laws and customs of Indigenous peoples. The Northern Territory land rights claim process is another potential model of proof that might have been adopted.[28]

6.16       Case law interpreting the Native Title Act has not examined alternative bases for structuring evidence to establish native title, although Ch 9 canvasses models from comparative jurisdictions. Some submissions noted advantages in possessory or occupation models.[29] Scholarship has identified other potential models, for example, common law Aboriginal title to land.[30] These models are untested under the Native Title Act. Accordingly, the ALRC makes no recommendation in relation to the viability of alternative models for proving connection.

Judicial interpretation of s 223(1)(b)

6.17       Section 223(1)(b) has been held to require that claimants demonstrate that they have a connection, by their traditional laws and customs, with the land or waters claimed. That is, the phrase ‘by those laws and customs’ in s 223(1)(b) is taken to refer to the traditional laws and customs referred to in s 223(1)(a).[31] Satisfaction of s 223(1)(b), like s 223(1)(a), is a question of fact.[32]

6.18       Thus, ss 223(1)(a) and (b) are interrelated, although two separate legal thresholds must be established. The High Court in Ward stated that a separate inquiry from that required by s 223(1)(a) is demanded by s 223(1)(b).[33] This is so even though the inquiry may depend on the same evidence as is used to establish s 223(1)(a).[34]

6.19       In construing the provision, the courts have strongly aligned connection with continuity of acknowledgment of laws and observance of custom. The Full Federal Court in Northern Territory v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group (‘Alyawarr’) held connection to be

descriptive of the relationship to the land and waters which is, in effect, declared or asserted by the acknowledgment of laws and observance of customs which concern the land and waters in various ways. To observe laws and acknowledge customs which tell the stories of the land and define the rules for its protection and use in ways spiritual and material is to keep the relevant connection to the land.[35]

6.20       The Full Federal Court has similarly observed that, because connection must be ‘by’ traditional laws and customs, connection involves an element of continuity, deriving from ‘the necessary character of the relevant laws and customs as “traditional”’.[36]

6.21       Further, the Full Federal Court in Bodney v Bennell set out the relationship between s 223(1)(a) and s 223(1)(b) as

the laws and customs which provide the required connection are ‘traditional’ laws and customs. For this reason, their acknowledgment and observance must have continued ‘substantially uninterrupted’ from the time of sovereignty; and the connection itself must have been ‘substantially maintained’ since that time.[37]

6.22       At other points, the concept of ‘recognition’ of native title has been associated with ‘connection’.[38]The High Court in Ward noted:

An important aspect of the socially constituted fact of native title rights and interests that is recognised by the common law is the spiritual, cultural and social connection with the land.[39]

6.23       The strong identification of connection in s 223(1)(b) with the continued acknowledgment of traditional law and observance of custom is apparent in these statements. As detailed in Chapter 5, the ALRC recommends that the Act clarify that it is not necessary to establish that acknowledgment and observance of traditional laws and customs has continued substantially uninterrupted by each generation since sovereignty.[40]In relation to s 223(1)(b), the ‘substantially maintained’ threshold would be retained. Accordingly, as there is a strong interrelationship between the elements of s 223(1), a substantially maintained threshold could potentially apply to both ss 223(1)(a) and (1)(b).

6.24       The high threshold for continued acknowledgement of law and observance of custom to establish connection in current jurisprudence might be contrasted with Brennan J in Mabo [No 2]:

Where a clan or group has continued to acknowledge the laws and (so far as practicable) to observe the customs based on the traditions of that clan or group, whereby their traditional connexion with the land has been substantially maintained, the traditional community title of that clan or group can be said to remain in existence.[41]